Order In the Court Lessons from Twenty Years As An Expert Witness Terry C. Wicks, CRNA, MHS Catawba Valley Medical Center Hickory, North Carolina Presentation Overview Disclaimer Staying Out of Trouble A Few Legal Points and Definitions What Plaintiff’s Attorneys Want What Defense Attorneys Want Being a Competent “Expert” Witness Disclaimer I am not an attorney…(but I did see “The Verdict” three times) I did not intend to become an “expert” witness. I was asked I tried to get out of it but… There’s a lot of work to be done… …and the money is pretty good. I am not infallible and I am still learning. This presentation is not a substitute for legal counsel… Remember… When a suit is brought it’s means that’s there has been a disaster for everyone except for you and the attorneys: The patient The patient’s family The anesthesia provider The anesthesia provider’s family As an expert, embrace your responsibility with the appropriate commitment to the profession and to justice (you will be the alone in this regard). Staying out of Trouble Be familiar with and practice within written AANA Standards of Practice Code of Ethics for the Certified Registered Nurse Anesthetist Scope and Standards for Nurse Anesthesia Practice Standards for Office Based Anesthesia Practice Post Anesthesia Care Standards for CRNA Guidelines for the Management of the Obstetrical Patient for CRNAs Care for your patients like you would a member of your family All available for free at AANA.com Common Problems Incomplete or inadequate evaluation: Would a more thorough or timely evaluation materially helped to avoid the injury? Improper Monitoring Failure to meet monitoring standards Lapses of vigilance Blood Loss Airway Misadventures that result in anoxic or hypoxic brain injuries. Nerve Injuries: Mechanical or drug induced Negligence is all about… A duty of care Breach of that duty Injury Causation Duty of Due Care The Duty of Due Care requires all persons to conduct themselves as a reasonably prudent person would do in similar circumstances. How do we define reasonable? Not perfect, or best care, but what a reasonable and ordinary clinician would chose. Local v State v National Standards Breach of Duty Expert Witnesses Establish the Standard of Care Show that a breach of that standard occurred. The expert must be professionally qualified Injury & Causation The injury would not have occurred but for the defendant’s act or: The injury was a foreseeable result of negligent conduct. Res Ipsa Loquitor The defendant had a duty to act reasonably. The injury ordinarily would not occur in the absence of negligence. The defendant must have exclusive control of the apparent cause (may be the “right” of control v actual control). The plaintiff could not have contributed to the injury Respondeat Superior Hospitals, clinics, and physicians can be held responsible for the negligence of their agents or employees. Is not based on employment status but rather, whether the person being employed was under the direction and control of the superior. Informed Consent The nature and purpose of the procedure The most significant risks Benefits of the intervention The probable outcome of the intervention Possible alternatives The patient must be free from coercion Patient Relations There is no substitute for good patient relations “In every lawsuit, somebody’s angry” Mark VanderLinden, BSN, JD, CPHRM, Risk Control Consultant at CNA. Disclosure of Adverse Events Apologies help Communication Results: Patients are more likely to be satisfied when informed about what happened, cases are more likely to be resolved quickly and in an amicable manner. Anesthesia Records Written records need to be complete & legible Anesthesia records: Chronicle the pt’s response to surgery and anesthesia Allows recreation of the anesthetic episode at a later date Periodically turn your attention from other matters of importance back to the patient (set the alarms!) In general, what isn’t documented didn’t happen…most anesthesia records are atrocious. Initial Steps if Sued Notify your carrier if you believe or know that you are going to be sued e.g. your medical records department gets a request for records. Never change, alter, or amend the record. Meet with Counsel as soon as possible. Don’t discuss the case with other potential defendants. Address and send any notes to your attorney. Hot Seat Survival Tips Know your science Stay current Review periodically Know your habits Use terms of art precisely Don’t use jargon Correct Counsel’s misuse of terms An Ideal Client Be active in your own defense Be part of your attorney’s team Stay in touch with your attorney, leave plenty of time for preparation for deposition. Dress for success. Just answer the question Don’t guess, be as precise as possible. An estimate is just an estimate. Be brief in your answers, don’t elaborate, don’t be evasive. Your conversations with your attorney are confidential Stay calm & never, ever, lie…or make stuff up. Rules of Self Defense There are no stupid attorneys Chameleons Bullies Sweet talkers They know the law, but… You know anesthesia… well, you should anyway. Expert Requirements The Expert Witness must be familiar with the jurisdiction’s standard of care requirements. The Expert must be professionally qualified: Education Experience Practice The Plaintiff’s Counsel Is the issue clear cut (can you connect the dots)? Are the damages astronomical? What is the age of the client? How will the client appear to the jury? The Plaintiff’s Counsel Was there negligence? Breach of the standard of care Failure to follow policy Does causality exist? Does the record validate the claim? The Plaintiff’s Counsel Expert characteristics Professional experience Match for age, experience, education and practice of the defendant Presentation Testimony experience Price Work both sides of the street Defense Counsel The attorney will have interviewed the client, and reviewed the chart. What happened and how is it charted? They look for: Errors Omissions Inconsistencies Other problems What is the extent of the injury and how unusual is it? Counsel for the Defense What does an unbiased expert say about the case? Strong education & training Experience Gives candid assessment of the problem Is the event so rare that the standard of care could not have contemplated the event? How does the defendant, and the expert, present themselves? Counsel for the Defense Witness/Expert Intangibles: Arrogance and condescension are poison Good communication skills Strong positive presence What is the venue, is it hospital/physician friendly or hostile Who is across the table? Does the defense have a credible story and credible witness? An Expert’s Opinion Read everything that is sent to you thoroughly Compare your impressions with known standards You are not required to memorize the record Be certain of your opinions Discuss them candidly with Counsel Counsel wants your honest opinion, identify the problems They may or may not choose to use you “I am an expert because I say I am…” Don Henley, The Garden of Allah Everything’s Discoverable Your previous expert testimony history in deposition and at trial Your frequency with which you provide expert opinion or testimony Your fee schedule and it’s percentage of your income Your notes Notes help you organize your thoughts They are discoverable Letters and emails to and from Counsel Sworn Testimony Deposition Testimony Trial Testimony is sworn testimony Is less formal than a Is sworn testimony Is more formal than a trial Is always recorded & may be video taped Is for the discovery and affirmation of facts and opinions deposition Is always recorded & usually given before a jury Is about the education and persuasion of the jury Expert Deposition Be prepared Always be Be succinct Answer briefly and precisely Don’t elaborate unnecessarily honest Always dress professionally Always be polite Going to Trial? Hopefully Not. The Plaintiffs counsel doesn’t want to go to trial Expensive Time consuming They may not get paid The Defense counsel does not want to go to trial Expensive Time consuming They may pay out a lot more money The Court prefers that the case settle: See above. Questions & Discussion terrywickscrna@gmail.com “Honesty is the best policy” Cervantes